Introduction

The United States adopted targeted killing as an essential tactic to pursue those responsible for the terrorist attacks of September 11, 2001. The Pentagon and the Central Intelligence Agency have employed the controversial practice with more frequency in recent years, both as part of combat operations in Afghanistan and Iraq and in counterterrorism efforts in Pakistan, Yemen, and Somalia. Since assuming office in 2009, President Barack Obama's administration has escalated targeted killings, primarily through an increase in unmanned drone strikes on al-Qaeda and the Taliban, but also through an expansion of U.S. special operations kill/capture missions. The successful killing of Osama bin Laden in a U.S. Navy SEAL raid in May 2011 and the September 2011 drone strike on Anwar al-Awlaki, an American-born Yemeni cleric and al-Qaeda in the Arabian Peninsula propagandist, are prime examples of this trend.

In recent years, the White House has made notable efforts to clarify its legal justification for targeted killings amid calls from lawmakers, rights activists, and legal scholars for greater transparency and oversight of the lethal drone program. In May 2013, President Obama delivered a major policy speech discussing the need for a "comprehensive counterterrorism strategy" and acknowledged issuing new policy guidance related to U.S. targeted killings.

What are targeted killings?

According to a UN special report on the subject, targeted killings are premeditated acts of lethal force employed by states in times of peace or during armed conflict to eliminate specific individuals outside their custody. "Targeted killing" is not a term distinctly defined under international law, but gained currency in 2000 after Israel made public a policy of targeting alleged terrorists in the Palestinian territories. The particular act of lethal force, usually undertaken by a nation's intelligence or armed services, can vary widely—from cruise missiles to drone strikes to special operations raids. The primary focus of U.S. targeted killings, particularly through drone strikes, has been on the al-Qaeda and Taliban leadership networks in Afghanistan and the remote tribal regions of Pakistan. However, U.S. operations have expanded in recent years to include countries such as Somalia and Yemen.

What are the legal considerations surrounding U.S. targeted killings?

The George W. Bush and Obama administrations have sought to justify targeted killings under both domestic and international law. The domestic legal underpinning for U.S. counterterrorism operations and the targeted killing of members of the Taliban and al-Qaeda and its affiliates across the globe is the 2001 Authorization for the Use of Military Force (AUMF), which the U.S. Congress passed just days after 9/11. The statute empowers the president "to use all necessary and appropriate force" in pursuit of those responsible for the terrorist attacks. Peacetime assassinations, which are sometimes conflated with targeted killings, have been officially banned by the United States since 1976.

The Obama administration asserts the United States remains in a state of armed conflict with al-Qaeda and associated forces, and has laid out its justification for targeted killings over several major policy speeches. These include those given by Harold Koh, legal adviser of the U.S. Department of State, in 2010; White House chief counterterrorism adviser John Brennan in 2011; Defense Department general counsel Jeh Johnson in 2012; Attorney General Eric Holder in 2012, and Brennan, once more, in 2012.

The White House maintains that the U.S. right to self-defense, as laid out in Article 51 of the UN charter, may include the targeted killing of persons such as high-level al-Qaeda leaders who are planning attacks, both in and out of declared theaters of war. The administration's posture includes the prerogative to unilaterally pursue targets in states without prior consent if that country is unwilling or unable to deal effectively with the threat—exemplified by the Navy SEAL raid that killed Osama bin Laden.

Speaking at Northwestern University in March 2012, Holder elaborated on the targeting of U.S. citizens abroad (e.g., Anwar al-Awlaki), stating that such individuals may be killed by U.S. forces, but are still protected under the Fifth Amendment's due process clause—albeit a consideration that "takes into account the realities of combat." Holder said specifically that it would be lawful to target a U.S. citizen if the individual poses an imminent threat, capture is not feasible, and the operation were executed in observance of the applicable laws of war.

In yet another major policy speech one month later, Brennan specifically addressed the standards by which the administration authorizes lethal strikes on al-Qaeda outside Afghanistan. Steps in the process include: deciding if the target is a significant threat to U.S. interests, being cognizant of state sovereignty issues, having high confidence in the target's identity and that innocent civilians will not be harmed, and, finally, engaging in an additional review process if the individual is a U.S. citizen.

A white paper leaked by the Department of Justice in February 2013 provided a detailed account of the legal framework for the targeted killing of U.S. citizens—although these strikes were not publicly acknoweldged until months later.

In May 2013, President Obama delivered a major address on U.S. counterterrorism policy at the National Defense University in Washington, D.C., in which he announced new policy guidance for U.S. targeted killings off the conventional battlefield. Notably, he said that the same "high threshold" the administration has set for targeting U.S. citizens will be extended to noncitizens—a policy that "respects the inherent dignity of every human life." While the president's speech largely defended U.S. drone policy, he also called for the refinement and eventual repeal of the AUMF—"to determine how we can continue to fight terrorists without keeping America on a perpetual war-time footing."

"If other states were to claim the broad-based authority that the United States does—to kill people anywhere, anytime—the result would be chaos." —Philip Alston, former UN special rapporteur on extrajudicial, summary, or arbitrary executions

CFR's Matthew C. Waxman says the ongoing challenge for the Obama administration has been to balance several opposing imperatives: asserting broad war powers, while assuring critics that they are limited; justifying actions that remain covert; and promoting government transparency, while protecting sensitive intelligence programs.

Philip Alston, the former UN special rapporteur on extrajudicial, summary, or arbitrary executions, condemns the U.S. claims of self-defense as overly expansive, stating that "if other states were to claim the broad-based authority that the United States does, to kill people anywhere, anytime, the result would be chaos." Waxman says that while the strike on bin Laden would normally be a violation of state sovereignty, the U.S. government "is well within its rights" to use force on foreign soil without consent if there is an overriding necessity of self-defense.

CFR national security expert John B. Bellinger says the law is in need of a significant update. "The 2001 AUMF is more than ten years old now and getting a little long in the tooth—still tied to the use of force against the people who planned, committed, and or aided those involved in 9/11," he says. "The farther we get from [targeting] al-Qaeda [e.g., al-Shabaab in Somalia], the harder it is to squeeze [those operations] into the AUMF."

What methods of targeted killing does the United States employ?

Drone Strikes

Targeted attacks launched from unmanned aerial vehicles, or drones, have ballooned under the Obama administration. A study undertaken by the New America Foundation reports that in his first two years of office, President Obama authorized nearly four times the number of strikes in Pakistan as President Bush did in his eight years. The report, which relies solely on media accounts of attacks, claims that some 291 strikes have been launched since 2009, killing somewhere between 1,299 and 2,264 militants, as of January 2013. Alternate reports also document the escalation in drone strikes in recent years, but the accounting of militant and civilian deaths can vary widely depending on the source.

Traditionally the CIA has managed the bulk of U.S. drone operations outside recognized war zones, such as in Pakistan, while the Department of Defense (DOD) has commanded operations in established theaters of conflict, such as in Iraq, Afghanistan, and Libya. But in some instances, the drone operations of both the CIA and DOD are integrated, as in the covert drone campaign in Yemen.

In early 2013, the Obama administration shifted some of the CIA's authority over lethal drone operations to the Defense Department in an effort to streamline counterterrorism operations and increase transparency, analysts say.

Kill/Capture Missions

Since President Obama assumed office, the Pentagon has also increased the use of special operations raids (i.e., kill/capture missions) from 675 in 2009 to roughly 2,200 in 2011. According to the Pentagon, approximately 90 percent of these night raids end without a shot fired. As conventional U.S. forces begin to draw down, "the role of counterterrorism operations, and in particular these kinds of special missions, will become prominent," says International Security Assistance Force (ISAF) commander General John Allen.

The covert raids are directed by an elite element within the U.S. military known as Joint Special Operations Command (JSOC). The clandestine command draws top personnel from groups like the Navy SEALs and Army Delta Force, and maintains a direct relationship with the executive branch. JSOC has tripled in size since 9/11 and currently operates in a dozen countries. Jeremy Scahill of the Nation writes, "The primacy of JSOC within the Obama administration's foreign policy—from Yemen and Somalia to Afghanistan and Pakistan—indicates that he has doubled down on the Bush-era policy of targeted assassination as a staple of U.S. foreign policy."

Civilians and local governments have condemned night raids as culturally offensive, given that U.S. soldiers often enter homes in the dead of night, with women present, and utilize dogs (which are viewed as impure in Islamic culture) in their search. In April 2012, the United States reached a seminal agreement with Afghanistan to give Kabul greater oversight over special operations raids and put Afghan forces in the lead of those activities.

What are the political implications of U.S. targeted killing?

A prominent criticism of U.S. targeted killings, and of drone strikes in particular, is over the issue of collateral civilian deaths. Some official Pakistani sources claim that seven hundred innocents were killed in 2009 alone, while U.S. government sources claim that fewer than thirty civilians were killed from May 2008 to May 2010. Writing in Foreign Affairs in late 2011, Peter Bergen andKatherine Tiedemann said the more salient question is: "What impact has the drone program had on the insurgency in Pakistan and, by extension, that in Afghanistan?" Violence in Pakistan has risen sharply since the drone campaign began, according to the U.S. National Counterterrorism Center. However, Bergen and Tiedemann caution, "a number of factors could have contributed to these increases."

Some observers argue targeted killings are a bane to U.S.-Pakistan relations. CFR's Edward R. Murrow Press Fellow Pir Zubair Shah writes that anti-Americanism in Pakistan is fueled by the domestic media's portrayal of the U.S. drone campaign as a "scourge targeting innocent civilians." This is a narrative that will persist, he says, "until the United States and Pakistan come clean about the program."

In November 2011, the Wall Street Journal reported the CIA had made several "secret concessions" in its drone program after U.S. diplomats suggested strikes targeting large groups of militants were harming relations with Islamabad. Changes in U.S. drone policy included giving the State Department greater influence in targeting decisions, providing Pakistani leaders forewarning about certain strikes, and suspending drone operations when Pakistani officials visit the United States. In addition, some experts suggest the CIA imposed a moratorium on drone operations in Pakistan from November 2011 to January 2012—the longest pause since the program was ramped up in July 2008—against a backdrop of deteriorating bilateral relations. In April 2012, the Pakistani parliament voted unanimously to demand an end to U.S drone strikes on its territory.

Drone strikes and special operations raids put fewer Americans in harm's way and provide a low-cost alternative to expensive and cumbersome conventional forces, especially given likely cuts in the U.S. defense budget and a waning public appetite for long, expensive wars.

Proponents of targeted killings say the civilian death toll is exaggerated for political purposes, while claiming drone strikes and night raids remain the most effective and discreet methods of pursuing militant leaders and their networks, especially as the United States begins to seek a smaller military footprint in the region.

In May 2013, President Obama acknowledged incidents of civilian casualties, but said that "there is a wide gap between U.S. assessments of such casualties, and nongovernmental reports." In further defense, he said that "the terrorists we are after target civilians, and the death toll from their acts of terrorism against Muslims dwarfs any estimate of civilian casualties from drone strikes."

Daniel L. Byman of the Brookings Institution says that targeting major terrorists like bin Laden removes charismatic and pragmatic leaders who are difficult to replace. In addition, by targeting an organization's lieutenants, "it is possible to exhaust the terrorist group's bench." CFR's Micah Zenko says that while drone strikes are an effective military tactic, "military victory is not tantamount to political success." He says that while a policy of leadership decapitation can reduce "a group's capacity, it neither ruptures group cohesion nor ideological commitment."

What is the future of targeted killings?

Blowback from civil liberties and human rights groups is likely to grow in direct proportion to any increase in targeted killings. Organizations such as the American Civil Liberties Union and Human Rights Watch have raised pointed questions regarding the program's perceived lack of accountability and transparency. However, in early 2013, the Obama administration made strides to address some of these transparency issues and expressed a willingness to increase oversight. In a May speech, the president said that Congress "is briefed on every strike that America takes," and that the White House will review proposals on how to extend oversight through the institution of special courts, independent boards, or other means.

Some critics question whether the United States is setting a negative precedent that will be invoked by other nations that acquire similar lethal technology, such as China and Russia. As an indication of things to come, security analysts project worldwide spending on drone aircraft to roughly double over the next decade to $11.4 billion.

Analysts point to several factors that indicate U.S. targeted killings are likely to expand in the near term. Drone strikes and special operations raids put fewer Americans in harm's way and provide a low-cost alternative to expensive and cumbersome conventional forces, especially given likely cuts in the defense budget and a waning public appetite for long wars.

The rise of the so-called "nonstate actors" operating in loose transnational networks as the principal threat to U.S. national security also lends itself to an expansion of U.S. targeted killings, some experts say. In January 2012, the Pentagon released a strategy review that outlines defense priorities "in light of the changing geopolitical environment and our changing fiscal circumstances." The new guidance stresses the persistent threat of al-Qaeda and its affiliates in South Asia and the Middle East, and commits the military to actively pursuing these threats by "directly striking the most dangerous groups and individuals when necessary."

Other experts say technological advances, including precision-guided munitions and enhanced surveillance, have given the United States a greater ability to target these particular individuals while reducing collateral damage. In July 2011, Brennan, provided a portent of things to come: "Going forward, we will be mindful that if our nation is threatened, our best offense won't always be deploying large armies abroad but delivering targeted, surgical pressure to the groups that threaten us."

President Obama's January 2013 selection of Brennan to take over the CIA has reinforced the notion among some analysts that targeted killings will continue to be a central component of U.S. counterterrorism policy. Brennan played a significant role in the administration's expansion of targeted killings, including overseeing the process by which suspected militants and terrorists are selected for strikes.

Additional Resources

The Obama administration should nurture a regime to limit drone proliferation, write Micah Zenko and Sarah Kreps in Foreign Affairs.

The UN's special rapporteur on extrajudicial, summary or arbitrary executions reports on the use of drones and the relevant regimes of international law in 2013.